Dickey v. State , 483 S.W.3d 287 ( 2016 )

Cite as 2016 Ark. 66
SUPREME COURT OF ARKANSAS
No. CR-14-794
DONALD D. DICKEY Opinion Delivered February 18, 2016
APPELLANT
APPEAL FROM THE IZARD
V. COUNTY CIRCUIT COURT
[NO. CR-2010-28]
STATE OF ARKANSAS HONORABLE TIM WEAVER,
APPELLEE JUDGE
AFFIRMED.
ROBIN F. WYNNE, Associate Justice
Donald D. Dickey appeals from his convictions for first-degree murder and arson, for
which he was sentenced to life imprisonment. Because appellant received a sentence of life
imprisonment, our jurisdiction lies pursuant to Arkansas Supreme Court Rule 1-2(a)(2)
(2015). Appellant makes the following arguments on appeal: that the trial court erred when
it (1) denied his motion for directed verdict and allowed the jury to convict him of arson
using only circumstantial evidence; (2) denied his motion for directed verdict and found there
was substantial evidence to support the jury’s verdict; and (3) allowed witnesses to testify as
to statements made to them by the deceased about her fear of him and about his prior physical
abuse of her. Appellant’s arguments that the trial court erred by denying his motions for
directed verdict are not preserved for review. His remaining point on appeal lacks merit.
Accordingly, we affirm.
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In July 2010, the home that appellant had shared with his wife, Mary Dickey, prior to
their separation and impending divorce was severely damaged in a fire. Mary Dickey’s body
was found in the burned remains of the home. The cause of the fire was never determined
due to the extensive damage to the home. Appellant was arrested and charged with arson and
first-degree murder in connection with the fire and the death of his wife. At trial, the State
introduced a copy of an interview with police in which appellant stated he was at the home
on the day of the fire. In the interview, appellant also gave details regarding what he did that
day that were inconsistent with what other evidence showed. A couple testified that they
saw appellant driving in a direction leading away from the home while, at the same time, they
could see smoke from the fire in the distance. The State introduced a copy of a video from
a convenience store showing appellant buying gasoline before the fire started. Some time after
the fire started, appellant was seen at a dock washing his clothes in the lake. The State
introduced evidence that the shirt and shoes he was wearing had gasoline on them and that
one of his socks had Mary’s blood on it. Although appellant told police that he had spilled
gasoline on himself while buying gas, the State introduced evidence intended to show that this
was not the case. The State also introduced testimony from a number of witnesses that
appellant had been physically abusive toward Mary, that she was afraid of him, and that she
thought he might kill her. The trial court denied appellant’s pretrial motion in limine to
exclude the testimony and overruled appellant’s objections to the testimony at trial.
At the close of the State’s evidence, appellant moved for a directed verdict on both
counts, and the motion was denied. Appellant put on his case-in-chief, then moved for a
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directed verdict a second time after he rested. The motion was denied again. The State then
put on rebuttal testimony. Appellant did not renew his motion for a directed verdict after the
State rested. The jury found appellant guilty of both first-degree murder and arson and
sentenced him to life imprisonment. This appeal followed.
I. Sufficiency of the Evidence
Appellant raises two points on appeal in which he argues that the trial court erred in
denying his motions for directed verdict. Appellant’s arguments on these two points are not
preserved for review. This court has consistently held that Arkansas Rule of Criminal
Procedure 33.1 requires that an appellant move for a directed verdict at the close of the State’s
evidence and again at the close of all of the evidence, and that the failure to do so waives a
challenge to the sufficiency of the evidence on appeal. See, e.g., Davis v. State, 2009 Ark. 478,
348 S.W.3d 553; Flowers v. State, 362 Ark. 193, 202, 208 S.W.3d 113, 121 (2005); Romes v.
State, 356 Ark. 26, 144 S.W.3d 750 (2004); Doss v. State, 351 Ark. 667, 97 S.W.3d 413
(2003); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). In King v. State, 338 Ark. 591, 999
S.W.2d 183 (1999), we specifically held that the failure to renew a motion for directed verdict
after the close of the State’s rebuttal testimony waived the issue of sufficiency of the evidence.
Accord Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). Appellant admits that he
failed to renew the motion at the close of the State’s rebuttal testimony and asks this court to
overlook that omission because the error was “harmless.” However, we have held that this
renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed
against the criminal defendant. Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003); Willis
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v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Based on his failure to properly renew the
motion for directed verdict, we hold that appellant’s challenges to the sufficiency of the
evidence are not preserved for review on appeal.
II. Hearsay
Appellant’s remaining point on appeal is that the trial court erred by allowing witnesses
to testify as to statements made to them by the deceased about her fear of him and his prior
physical abuse of her. We review evidentiary rulings under an abuse-of-discretion standard,
and we do not reverse absent a manifest abuse of that discretion and a showing of prejudice.
Mendez v. State, 2011 Ark. 536.
The trial court did not err in allowing the testimony. Rule 803(3) of the Arkansas
Rules of Evidence (2015) contains a hearsay exception for a statement of the declarant’s then
existing mental, emotional, or physical condition. We have expressly held that a statement
of fear of a defendant by the victim falls within the exception contained in Rule 803(3).
Wedgeworth v. State, 2012 Ark. 63; MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).
Appellant argues that Mary’s state of mind was not relevant to the issue of whether the fire
was intentionally started and was therefore inadmissible. Appellant never raised this argument
before the trial court.1 We will not consider an argument raised for the first time on appeal.
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Appellant made general relevancy arguments in his motion in limine and supporting
brief in which he maintained that there was no relevant purpose for which the evidence could
be admitted and that the State sought to introduce the evidence to show that appellant was
“a dangerous individual who probably did the crime.” He did not, however, argue, as he
does now on appeal, that the statements were not relevant to the issue of whether the fire was
intentionally started. The failure to raise this specific argument below precludes review of the
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Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).
III. Confrontation Clause
Appellant also contends that the admission of the testimony violated his rights under
the Confrontation Clause of the Sixth Amendment to the United States Constitution. He
is mistaken. The State successfully argued before the trial court that the statements made by
Mary to her friends were nontestimonial. Nontestimonial hearsay is not subject to the
Confrontation Clause. Davis v. Washington, 547 U.S. 813 (2006). In Seely v. State, 373 Ark.
141, 151, 282 S.W.3d 778, 786 (2008), citing Davis, we explained that
Davis . . . announce[d] a “primary-purpose test” that can be modified for use outside
the context of police interrogations: statements are testimonial when ‘the
circumstances objectively indicate that . . . the primary purpose’ of the statement ‘is
to establish or prove past events potentially relevant to later criminal prosecution.’ Id.
at 822, 126 S. Ct. 2266. Moreover, there are indications that the Court intends the
focus to be on the primary purpose of the person making the statement, rather than
the primary purpose of the listener or questioner. See id. at 825, 126 S. Ct. 2266
(noting that “statements made unwittingly to a Government informant” are “clearly
nontestimonial”); Id. at n. 1 (“[I]t is in the final analysis the declarant’s statements, not
the interrogator’s questions, that the Confrontation Clause requires us to evaluate.”)
Here, Mary made statements to friends and acquaintances that she was afraid of
appellant and that he had hit her. The circumstances in this case objectively indicate that the
primary purpose of the statements was not to establish or prove past events potentially relevant
to later criminal prosecution. We hold that the statements were nontestimonial and are not
subject to the Confrontation Clause. The trial court’s rulings regarding the disputed
argument on appeal.
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testimony are affirmed.
The record has been reviewed for prejudicial error pursuant to Arkansas Supreme
Court Rule 4-3(i), and none has been found.
Affirmed.
Larry R. Froelich, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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